Citation Nr: 0326811
Decision Date: 10/08/03 Archive Date: 10/20/03
DOCKET NO. 02-19 129 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether there is new and material evidence to reopen a
claim for service connection for a chronic low back disorder
with sciatica.
2. Entitlement to an increased rating for seborrheic
dermatitis, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
R. T. Jones, Counsel
INTRODUCTION
The veteran had active duty from January 1952 to September
1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
REMAND
The veteran requested a hearing at the RO. A hearing was
scheduled, but notice of that hearing was apparently sent to
an address that was not current. Also, it appears that there
may additional medical records that may be pertinent to the
veteran's claim.
It is further noted that in a decision promulgated on
September 22, 2003, Paralyzed Veterans of America v.
Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -
7010 (Fed. Cir. Sept. 22, 2003), the United States Court of
Appeals for the Federal Circuit invalidated the 30-day
response period contained in 38 C.F.R. § 3.159(b)(1) as
inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a
conclusion similar to the one reached in Disabled Am.
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339,
1348 (Fed. Cir. 2003) (reviewing a related Board regulation,
38 C.F.R. § 19.9). The court found that the 30-day period
provided in § 3.159(b)(1) to respond to a VCCA duty to notify
is misleading and detrimental to claimants whose claims are
prematurely denied short of the statutory one-year period
provided for response.
To ensure that VA has met its duty to assist the appellant in
developing the facts pertinent to the claim, the case is
REMANDED to the RO for the following development:
1. Please furnish the veteran the
appropriate release of information forms
in order to obtain copies of the all VA
and private medical records pertaining to
treatment for his back disorder since his
release from active duty which have not
been previously submitted and current
treatment for his skin disorder, to
include the records from Express Care of
Belleview in Belleview, Florida
2. The RO should schedule the veteran
for a hearing before the hearing officer
at the RO.
3. Following any additional development
deemed appropriate by the RO, the RO is
requested to readjudicate the issues in
appellate status. If the benefits sought
are not granted the veteran and his
representative should be furnished a
supplemental statement of the case and an
opportunity to respond.
4. The RO must review the claims file
and ensure that all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002) are fully complied with and
satisfied. See also 66 Fed. Reg. 45620-
32 (August 29, 2001) (38 C.F.R. § 3.159).
In addition, the RO must ensure that all
VCAA notice obligations have been
satisfied in accordance with the recent
decision in Paralyzed Veterans of America
v. Secretary of Veterans Affairs No. 02-
7007, -7008, -7009, -7010 (Fed. Cir.
Sept. 22, 2003). See also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
2002) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT P. REGAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2002).